Today GLAD filed a motion for summary judgment in a first-of-its-kind case challenging discrimination against a gay man who takes the medication Truvada as pre-exposure prophylaxis (PrEP) to prevent the transmission of HIV.

The plaintiff in Doe v. Mutual of Omaha asserts that the insurance company’s refusal to sell him a long-term care policy is based on its categorical exclusion of anyone who is HIV-negative and takes PrEP. Doe asserts that Mutual’s blanket exclusion is sexual orientation discrimination because 80% of PrEP users are gay men. He also presses a claim for discrimination on the basis of perceived disability.

“There is no legitimate reason for Mutual’s exclusionary rule. It has no business rationale and flies in the face of common sense,” said Bennett Klein, Senior Attorney and Director of GLAD’s AIDS Law Project.

“Mutual would insure the same person not on PrEP — who presents the higher risk of HIV. Mutual’s policy is illogical and contrary to how it treats other medications. The only explanation for the exclusion of people who take a drug associated with gay men is that it is based on aversion to gay male sexuality and nothing else. In our view, it’s pure homophobia.”

In depositions cited by GLAD, Mutual’s own experts and its medical director made multiple admissions, among them:

PrEP is “highly effective” against HIV;

Mutual’s policy is contrary to its stated underwriting goal of reducing the number of people with HIV among its insureds; and

While Mutual excludes applicants who take PrEP as directed and are at low risk for HIV, the company sells insurance to applicants who do not take PrEP and are thus at higher risk for HIV.

Mutual of Omaha has variously claimed that its treatment of people taking Truvada is justified because of concerns about adherence to the treatment and because of the lack of long-term data on the effects of Truvada. But these rationales are contradicted by Mutual’s provision of long-term care insurance to applicants taking drugs for other illnesses.

This case, the first to challenge the anti-gay policy that is widespread in the industry, has brought national prominence to the issue and prompted some state insurance agencies to consider action. In June, the New York Department of Financial Services issued a directive that the exclusion of people on PrEP from life, disability and long-term care insurance is unlawful discrimination.

Filed in the U.S. District Court for the District of Massachusetts, the motion also rebuts Mutual’s jurisdictional objections.